Border Patrol absolves itself in dozens of cases of lethal force

Brian Bennett / Los Angeles Times

Crosses mark the spot where two children drowned in the Rio Grande near where Guillermo Arevalo Pedraza, 37, was shot and killed by a Border Patrol agent on Sept. 3, 2012. Witnesses said Arevalo was at a family barbecue.

Crosses mark the spot where two children drowned in the Rio Grande near where Guillermo Arevalo Pedraza, 37, was shot and killed by a Border Patrol agent on Sept. 3, 2012. Witnesses said Arevalo was at a family barbecue.

A U.S. Border Patrol agent who killed an unarmed 15-year-old Mexican boy by shooting him in the face after a rock-throwing incident on a border bridge to El Paso in 2010 was recently cleared of wrongdoing by the agency's internal affairs office.

So was a Border Patrol agent who shot and killed a 17-year-old Mexican who threw rocks from the Mexican side of the border fence near Nogales, Ariz., in 2011.

Internal affairs also cleared an agent who shot and killed a 19-year-old U.S. citizen as he climbed over a border fence into Mexico near Douglas, Ariz., in 2011. Agents said the man was seeking to flee after driving a narcotics-laden truck into a Border Patrol vehicle.

In all, an internal investigation of 67 shooting incidents, which left 19 people dead, absolved agents of criminal misconduct in all but three cases, which are still pending. The review was completed last month.

None of the agents involved has been charged with a crime, said Anthony Triplett, who helped direct the review at the office of internal affairs for U.S. Customs and Border Protection, the parent agency of the Border Patrol.

Only two agents faced disciplinary action. Both received oral reprimands.

Criminal charges are still possible in the three pending cases, officials said. Prosecutors in the Justice Department's civil rights division have been investigating those lethal shootings, all from 2012, since they occurred.

The agents in those three cases are still conducting armed patrols on the border, officials said.

Critics along the Southwest border and in Mexico long have argued that the Border Patrol, the federal government's largest law enforcement force, operates with little transparency or accountability in cases involving purported abuses.

The agency's broad approval of its own record in scores of shooting cases, despite vows by the Obama administration to crack down on agents who use excessive force, is unlikely to change that perception.

"We are deeply disappointed" with the lack of action, said Juanita Molina, executive director of Border Action Network, a human rights organization based in Tucson. "When you have someone throwing rocks and someone responding with lethal force, it is just not proportional."

"Turning the page doesn't mean burying the past," said Chris Rickerd, a border security expert at the American Civil Liberties Union in Washington. "There is no assurance to border residents that agents who have used excessive, improper lethal force aren't on the job in their communities."

Administration officials say they are determined to restore public trust in the Border Patrol despite its tradition of closing ranks around its paramilitary culture.

Last month, Customs and Border Protection made it possible for people to file written complaints against officers in Spanish for the first time. The move came after pressure from activists who said the Border Patrol deliberately made it difficult to file complaints.

Unlike domestic police departments, the 21,000-member Border Patrol released almost no public information about shootings, including the outcome of its investigations, until recently. That practice has started to ease slightly as supervisors have been granted more latitude from headquarters to describe individual incidents.

The internal affairs review was started in July after an earlier study of the same 67 shooting cases by an independent group of law enforcement experts found a pattern of agents firing in frustration at people throwing rocks from across the border, as well as agents deliberately stepping in front of cars apparently to justify shooting at the drivers.

That study by the Police Executive Research Forum, a nonprofit research and policy organization in Washington, criticized the Border Patrol for a "lack of diligence" in investigating its deadly incidents. The Border Patrol did not give a copy to Congress until the Los Angeles Times Washington Bureau disclosed its contents in February 2014.

In response, R. Gil Kerlikowske, commissioner of Customs and Border Protection, ordered new limits on when Border Patrol agents were permitted to fire their weapons and revamped weapons training. He also removed the longtime head of internal affairs and created an internal panel to review incidents of deadly force.

He also tapped an FBI agent, Mark Morgan, to temporarily lead the office of internal affairs and to review the 67 cases, which date from January 2010 to October 2012. Before he returned to the FBI in December, Morgan had helped identify cases with gaps, a lack of witness statements or other discrepancies.

Sixty-three cases were subsequently cleared. Three others are with the Justice Department. Disciplinary action is still possible in the final case.

Last Monday, Kerlikowske named a new head of internal affairs. Matthew Klein spent 26 years in the police department that serves Washington, D.C., and he oversaw deadly force investigations when the department was following a federal mandate to improve its treatment of citizens.

In an interview, Klein said he wanted the Justice Department to decide more quickly whether to bring charges in border shootings.

"We would prefer a faster resolution," Klein said.

He said he would bring up the three pending cases with Justice Department lawyers.

Until recently, internal affairs officers were not permitted to begin criminal investigations of Customs and Border Protection officers and agents. Jeh Johnson, secretary of Homeland Security, expanded their authority last year, and Klein said the new powers should allow them to investigate "more completely."

Janet Napolitano, who headed Homeland Security from 2009 to 2013, said Friday that she sought to take on the spate of border shootings during her tenure. She expressed frustration that some of the cases were still pending.

"I think part of it was just the civil rights division is only so big and it can take that long," said Napolitano, who now heads the University of California system. "I would say that ideally, yes, those cases would move more quickly."

Napolitano would not discuss specific lethal-force cases because she is a defendant in multiple lawsuits brought by families of people killed by Border Patrol agents.

The three cases still under investigation at the Justice Department involve three Mexican men who were shot and killed from across the border.

In one, Border Patrol agents repeatedly shot at Juan Pablo Perez Santillan, 30, as he stood watch for a group of migrants crossing the Rio Grande illegally near Brownsville, Texas, in July 2012.

According to a lawsuit his family filed in U.S. District Court in Texas, an agent used a high-power scope on his rifle to aim at Perez Santillan and fired at least five times, hitting him in the chest.

After Perez Santillan's brother Damien pleaded for help, one agent shouted back, "Que se muera el perro," meaning "Let the dog die," the lawsuit states. He died at a hospital.

Two months later, a Border Patrol agent in an airboat shot and killed Guillermo Arevalo Pedraza, 37, in a park across the Rio Grande from Laredo, Texas. The agent later said he had been pelted with rocks from shore. Witnesses told the Los Angeles Times last year that Arevalo was at a family barbecue.

That October, an agent in Nogales, Ariz., shot through a border fence after a rock-throwing incident and killed Jose Antonio Elena Rodriguez, 16. The official incident report says the agent fired 15 times. The official autopsy says Rodriguez was hit eight times in the back.